Election 2016: Are the Producers of The Apprentice Legally Prohibited From Releasing Unseen Footage?

Election 2016: Are the Producers of The Apprentice Legally Prohibited From Releasing Unseen Footage?

Edited and updated by: Anthony Zangrillo

“You’re fired!”

That’s the line Donald Trump made famous in his decade long run as the host of The Apprentice. However, The Apprentice has become a hot topic in recent days because of the release of a 2005 Access Hollywood tape depicting Donald Trump describing the sexual harassment of women.1 With the 2016 Presidential Election less than a month away, there has been overwhelming interest into unaired footage from The Apprentice that allegedly depict Donald Trump acting “far worse” than he did in the 2005 Access Hollywood footage.2 One producer, Bill Pruitt, confirmed that The Apprentice footage from seasons one and two were “far worse” than what was seen on the Access Hollywood footage.3

With public interest at an all-time high, pressure has begun to mount for the owner of The Apprentice footage to release it in the public interest of determining the fitness of Donald Trump for the presidency. The Apprentice is owned by Mark Burnett Productions; MGM acquired a majority share in Mark Burnett Productions in 2014.4 MGM and Mark Burnett responded to a request for the footage from Time with the statement: “Despite reports to the contrary, Mark Burnett does not have the ability nor the right to release footage or other material from The Apprentice. Various contractual and legal requirements also restrict MGM’s ability to release such material.”5 A spokeswoman for NBC, the network that broadcast The Apprentice, stated that NBC licensed the footage from Mark Burnett and that even if it did have the footage, NBC doesn’t “have the legal right to give out the footage from that show.”6 The two things that come up regarding why the footage can’t be released are confidentiality and non-disclosure agreements, which are are generally created to prevent the release of spoilers before content is released.7 It’s possible that a judge could find those clauses void after a show is broadcast, but the specific language in the contract ultimately determines whether or not those clauses last in perpetuity.8 In response to the statement released by MGM and Burnett, famed civil rights attorney Gloria Allred wrote an open letter to Burnett in a news conference where she stated that she would welcome a meeting with MGM attorneys where they could explain why they couldn’t release the tapes, or have the evidence supporting MGM’s position be judged by a panel of three retired judges who would determine if the footage could be legally released.9

On this topic, Devin McRae, Partner at Early Sullivan Wright Gizer & McRae, states: “In his contract with MGM relative to The Apprentice, Trump undoubtedly has protective language regarding the use of his name and likeness. For Burnett or MGM to disseminate Trump’s name and/or likeness (as captured in old out-takes), without Trump’s consent, would likely violate Trump’s protective language governing the use of his name and likeness. Any breach by Burnett or MGM of this protective language could give Trump a potential action for breach of contract (possibly also impacting MGM’s continued ownership of, and/or rights to exploit, The Apprentice). Moreover, as a matter of intra-company affairs, it would be highly unusual for a divisional president on his own to thrust an entire movie studio into an area of national (and indeed worldwide) political controversy; divisional presidents have been fired for such acts. Nonetheless, Burnett and MGM, in this instance, should absolutely take those risks for the higher good and release the tapes of the scoundrel…”

All of this serves as a reminder of the world that we live in, namely the digital world where cameras are everywhere and nothing is ever deleted. As Marc Misthal, a partner and an intellectual property attorney with Gottlieb, Rackman & Resiman reiterates “that [releasing the tapes] all depends on what the contracts say and how they are interpreted. As far as I know no one has seen the agreements, so everything else is just speculation.” People in all walks of life should take note of what has happened to Donald Trump, in that you have to be careful of what you say at all times. You can never be sure if the words that you said years ago will come back to haunt you.

Johnathan Ling

Johnathan Ling is a second year student at Fordham University School of Law and a staff member of the Fordham Intellectual Property, Media & Entertainment Law Journal. He has a B.A. in Economics from New York University.

The Fordham Intellectual Property, Media & Entertainment Law Journal is one of the leading scholarly law journals dedicated to the publication in all areas of intellectual property law.